Medicaid Expansion Hangs On Justices' Scale

And now to another provision in the health care law that's being challenged: the Medicaid expansion. Those arguments took place this afternoon. And NPR's Julie Rovner is here in the studio to talk about them. Julie, the key question before the court was whether the law goes too far. It requires states to expand their Medicaid programs. So why don't we back up and start with the basics, how Medicaid works and how the law changes that?

JULIE ROVNER, BYLINE: Well, Medicaid is the program that provides health coverage to about 60 million Americans with low incomes. Its funding is shared by the federal government and the states. Right now, the federal government pays a little bit more than half the cost. States pay a little bit less than half, although that varies by each state. What the health law does is it expands Medicaid to cover about 17 million more people. That's mostly adults without children. Now, because most states are still in some financial hard times, the federal government is going to pay most of that cost, all of it for the first couple of years, eventually 90 percent.

BLOCK: This part of the case, Julie, centers on a challenge to the law from 26 states. What's their argument? How did they present it today?

ROVNER: Their argument is premised on a rarely litigated section of the Constitution called the spending clause. Basically, it's long been established that when the federal government gives states money, it can attach conditions. The question is whether, at some point, do those conditions become so onerous that it amounts to coercion? And basically, the states argued that if they don't carry out this expansion, they could lose all their other Medicaid money - billions and billions of dollars.

BLOCK: And what's the counterargument from the Obama administration on that?

ROVNER: Well, actually, the administration's case was made best not by its own lawyer - Solicitor General Don Verrilli - but by the liberal justices on the court. Here's the newest justice, Elena Kagan.

JUSTICE ELENA KAGAN: The federal government is here saying we're giving you a boatload of money. There are no - there's no matching funds requirement. There are no extraneous conditions attached to it. It's just a boatload of federal money for you to take and spend on poor people's health care. It doesn't sound coercive to me, I have to tell you.

ROVNER: But the bigger argument the administration made was that while the secretary of Health and Human Services might be able to take away all of a state's Medicaid money if it doesn't carry out this new expansion, in practice, she probably wouldn't. Justice Breyer actually read aloud the section of Medicaid law that says the secretary can take away a state's Medicaid money, but she can do lesser things, too. The fact that the secretary of HHS has discretion to not take away all the money, though, didn't seem to satisfy Paul Clement, the attorney for the states.

PAUL CLEMENT: We've talked a lot about the sort of hallmark of coercion - your money or your life with somebody with a gun. I would respectfully suggest that it is equally coercive and certainly not uncoercive if I say your money or your life, and by the way I have discretion as to whether or not I will shoot the gun.

BLOCK: Well, Julie, did you get any sense for which way the justices might be leaning in this part of the argument today?

ROVNER: Well, the court's four liberal justices certainly gave Mr. Clement an awfully hard time with the idea that giving states, as Justice Kagan described it, a boatload of money could amount to coercion. And even Chief Justice Roberts seemed to have his doubts about the idea.

CHIEF JUSTICE JOHN ROBERTS: It seems to me that they have compromised their status as independent sovereigns, because they are so dependent on what the federal government has done. They should not be surprised that the federal government having attached the - they tied the strings. They shouldn't be surprised that the federal government isn't going to start pulling them.

ROVNER: But I should add that the chief justice also gave the government's attorney, Solicitor General Verrilli, some hard questions too, so I wouldn't necessarily count him as a fifth vote to uphold the law's expansion to Medicaid. And it was hard to read the other conservatives, including the usual swing vote, Justice Anthony Kennedy.

BLOCK: So that wraps up the third and final day of arguments on the health care overhaul. Julie, a decision expected again by?